The Blog of International Judicial Assistance | By Ted Folkman of Murphy & King

BC Files Its Brief

Posted on May 4, 2012

An update from the now somewhat dormant Belfast Project case: here is Boston College’s appellate brief. In a way, this brief is a better read than Moloney & McIntyre’s, because it doesn’t have to deal with any of the underbrush in their case: standing, claims of a private right of action under the MLAT, all of the issues that pose problems for them that BC does not have. So the brief goes right to the main issues.

BC’s basic point is that Judge Young got the law right—he appropriately conducted a balancing analysis—but that he implemented the law poorly. Much of the brief will stand or fall with what the judges think of the Cusumano v. Microsoft decision, from 1998. When I first wrote about this, it struck me that Cusumano is pretty old given the judicial hostility to the journalist’s privilege, for example, in the interim. On this score, it’s noteworthy to me that Boston College shies away from asserting an evidentiary privilege, saying instead merely that the materials in its archives are “subject to special protection.” BC asserts that Judge Young mistakenly thought that this “special protection”, which includes limiting production to directly relevant evidence, was inapplicable because he was acting under the MLAT. Wrong, says BC: Article 8(2) of the MLAT provides that evidence can be compelled only “in accordance with the requirements of the law of the Requested Party.” Does this mean that evidence is discoverable under the MLAT only if it would be discoverable in a domestic csae, or does it instead mean that the US court is to use its own procedures to take the evidence? It’s not clear to me one way or the other, and BC cites no cases on point.

The standard of review will also be highly relevant. BC concedes that the First Circuit reviews Judge Young’s decision on a motion to quash only for abuse of discretion. That means that it’s not enough that the First Circuit would have decided the case differently. If the judges come to the conclusion that Judge Young was wrong, we will have to wait and see whether they decide that he was wrong enough to reverse him.

Esteemed fellow blogger Chris Bray beat me to the punch and posted on the brief yesterday. He expresses surprise that BC would assert that by disclosing the contents of her interviews to a third party (there’s apparently a dispute about whether she actually did so), she could somehow lose whatever privilege that otherwise would protect her interview from disclosure. In general, disclosure to a third party does destroy a privilege, even if the privilege holder doesn’t intend that outcome. So if I go to my lawyer and get some advice from her, and then I tell my best friend what she said, in general the privilege is destroyed even if that wasn’t my intention. So I am not sure that Chris’s point is well-taken, though he may just be saying that as a matter of professional ethics an oral historian should not disclose a confidence unless the source has given an express waiver, whatever the law says.

4 Comments

Ted, there’s a single story about Dolours Price that claims she talked about the murder of Jean McConville and about her own BC interviews. The journalist insinuated that he had her tapes, but he wrote in his story that the tapes were at “Boston University.” Based on that single, thinly sourced, obviously inaccurate story, BC is abandoning its promise to maintain the confidentiality of a research subject’s interviews, maintaining that she no longer intends to maintain that confidentiality.

If you were representing a client who had an extraordinarily sensitive conflict with federal prosecutors, and a single thinly sourced news story appeared in a newspaper saying that your client had talked to a reporter about the matter, would you shrug and say that your discussions with your client were no longer confidential? Would you stop protecting your client? Would you turn over your client’s records to the government, and point to the newspaper story as your justification for doing so?

Chris, I took your point to be that even if it were very clear that Price had disclosed the contents of the interview, there would still be a viable claim of privilege:

“Going further, say for the sake of argument that all of your conditions were met: Dolours Price made specific comments in public about the McConville murder and the BC tapes, and those statements were precisely described and documented. Would that constitute a waiver of confidentiality? The answer is still no.”

This is the point I was challenging—obviously the mere assertion of a waiver is not enough, but that wasn’t your thought experiment.

having read your take I think we can extrapolate from the abuse of discretion point being made by BC that the college does not in fact go to the main issue at all. It in fact seeks to avoid it. It is highly unlikely that the college will break any new ground with this approach. It echoes its earlier legal strategy of turning up on the Andy Warhol principle, but only to stand with its hands in its pockets once asked by the court to show the colour of its money

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